CHOY KIN CHOY v. CHOY CHAN LAI NGAR

IN THE COURT OF APPEAL

1993, No. 47
(Civil)

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D I R E C T I O N S

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Bokhary, J.A.:

1. As far as the wife's application that the husband be ordered to make an advance payment of maintenance is concerned, I am of the view that such a notion, although it has certain attraction, is impracticable. And I do not accede to that application.

2. Turning to other matters, the husband's counsel has placed before me a sheet of paper setting out 12 directions. And I propose to deal with those now. Before going any further, I would just mention that what was termed the 8th direction will be the 9th, and that what was termed the 9th direction will be the 8th.

3. As to the 1st direction, the parties are agreed on it in these terms: "The parties may continue, until 18th April 1995, their efforts to cause the property to be sold by private treaty at a price of not less than HK$4.5 million.".

4. As to the 2nd direction, the parties are agreed on it in these terms: "If no Agreement for Sale and Purchase is signed by 18th April 1995, then the property be sold by auction on 6th May 1995.".

5. As to the 3rd direction, the parties are agreed on it in these terms: "Chung Sen Auctioneers Limited be appointed as auctioneers and a letter of appointment be signed by the parties on 19th April 1995".

6. As to the 4th direction, the parties are agreed on it in these terms: "the Respondent to deliver keys to Chung Sen Auctioneers Limited upon signing of the appointment letter (and she do permit the auctioneers to show the property to prospective bidders between 10 a.m. and 7 p.m., Mondays to Fridays, on two hours notice)".

7. As to the 5th direction, the parties are agreed on it in these terms: "the reserve price be determined at HK$4.5 million with completion and vacant possession being delivered to the purchaser not less than one month from the date of auction".

8. As to the 6th direction, the parties are agreed on it in these terms: "HK$5,000.00 auction fees to be paid by the Petitioner first and to be deducted from the 10% deposit upon the sale".

9. As to the 7th direction, the parties are agreed on it in these terms: "1% commission to be deducted from the 10% deposit."

10. As to the 8th direction, the parties are agreed on it in these terms: "the balance of the deposit to be divided as follows:-

as to 2/3 thereof to the Respondent and 1/3 thereof to the Petitioner".

11. As to the 9th direction, the parties are agreed on it in these terms: "the Petitioner do pay to the Respondent all arrears of maintenance to be deducted from his share of the deposit".

12. I make all of those directions, the 1st to the 9th, by consent.

13. Now I come to the ones in controversy, directions 10, 11 and 12.

14. As prepared by the husband, the 10th direction reads: "the Petitioner and children to move out of the property within 3 weeks from the date of auction". The wife proposes instead: "the Petitioner and children to move out of the property not less than seven days prior to completion". The husband would prefer it to be not less than 14 days prior to completion. I can understand his thinking in the matter. But the wife has her difficulties, too. And on the whole, I propose to make this direction in the terms which the wife proposes, namely, that "the Petitioner and children to move out of the property not less than seven days prior to completion".

15. The 11th direction as proposed by the husband reads: "from the date of auction all costs and disbursement in relation to the sale to be deducted from the sale proceeds". The wife contends that the deduction should be from the husband's share of the sale proceeds.

16. There have been difficulties on both sides and for both sides. All things considered, I think that what the husband proposes in this regard is fair. And I propose to order the 11th direction in the terms which the husband puts it forward.

17. The 12th direction as prepared by the husband reads: "all costs and disbursements of this application to be borne by the Respondent". The wife proposes in place of such a direction one to this effect: "no order as to the costs and disbursements of this application, save that each party's own costs be taxed under Legal Aid Regulations".

18. There have been difficulties over this matter. And, to a certain extent, one might say that the wife has been creating some of those difficulties. But I do not think that she created the same because she chose to be unreasonable. She was faced with a number of problems compounded by the husband having fallen into arrears of maintenance. All things taken into consideration, I propose to direct that there be no order as to the costs and disbursements of this application, save that each party's own costs be taxed under the Legal Aid Regulations.

(K Bokhary)

Justice of Appeal